- (1.) The present petition is filed under Article 226 of the Constitution of India for seeking the following reliefs including the amended reliefs which read as under:- "20(a) Your Lordship be pleased to issue writ of mandamus, or writ of certiorari, or any other writ, order or direction, directing that the communication dated 01.11.2017, 30.01.2018 and 02.02.2018 passed by the respondent is illegal, improper, arbitrary and contrary to the Articles 14 and 16 of the Constitution of India and be further pleased to quash and set aside the same. (b) Pending admission, hearing and final disposal of the petition, Your Lordship be pleased to restrain the respondent authorities from effecting any recovery pursuant to the said communication dated 01.11.2017 and 02.04.2018. (c) Your Lordship be pleased to issue writ of mandamus or any other appropriate writ, order, direction, directing the respondent to repay the amount of illegal recovery made from the Pension along with all arrears and with 18% interest thereon and Your Lordship be further please to direct the respondent to start to pay the regular pension to the petitioner. (d) Your Lordships be pleased to grant such other and further relief as any be deemed fit in the interest of justice."
(2.) The case of the petitioner is that the petitioner was working with the respondent right from 14th February, 1957 and the date of the birth of the petitioner is 10.11.1938. After serving at various stages in the employment, lastly the petitioner retired as an Assistant Traffic Manager (Class-I) from the Kandla Port Trust on 30.11.1996. The petitioner was granted benefit, on account of reaching the age of superannuation as stated above throughout without any hindrance. Prior to the post of Assistant Traffic Manager, the petitioner was working as a Traffic Inspector on adhoc basis and from 13.02.1992, the petitioner was regularized in the said post which was undisputedly a Class-III cadre post. The petitioner was then promoted as an Assistant Traffic Manager and worked as such upto 30.11.1996 on adhoc basis and then was made permanent with effect from 02.08.1996. During the adhoc period on the said post of Assistant Traffic Manager, the petitioner was given break of one or two, however, was receiving the salary for the break period of Traffic Inspector cadre i.e. Class-III. The pension of the petitioner was fixed as if the petitioner was belonging to the Class-III cadre i.e. the Traffic Inspector and the details of calculations of the consolidated pension is attached with the petition by indicating that from the date of the retirement, the pension was fixed on the basis of the salary drawn by the petitioner at the time of retirement. The petitioner from November, 1996 i.e. from the date of the retirement was regularly receiving the pension and all of a sudden almost after a period of 21 years without granting any opportunity, without prior intimation and without even notice, a letter came to be issued on 01.11.2017 along with the proposed recovery chart and was conveyed that an excess amount was paid to the petitioner in the total sum receivable by way of pension, which has resulted into a wrong consolidation of the pension to the petitioner. Hence, over payment to the tune of Rs.3,37,725/- was directed to be deposited through the cheque in favour of the Kandla Port Trust Superannuation Scheme and submit the same in pension section, else, the same will be recovered from the dearness amount of the petitioner and it was also informed that till full recovery is effected, the petitioner will be paid minimum pension of Rs.3,900/- per month instead of regular pension. This has been issued for the first time, after a period of 21 years, on 01.11.2017. The petitioner, accordingly submitted a letter on 24.11.2017 and sought certain details and information as the petitioner had retired way back in the year 1996 and is of advanced age of around more than 80 years. According to the petitioner, instead of applying the relevant rules and the detailed information, which have been sought, a further letter was received from the respondent on 30.01.2018 directing the petitioner to make the payment of lump sum amount of Rs.3,37,725/- which was paid in excess from 01.01.1997. The said letter was also responded by the petitioner and again approached the respondent authority by a communication dated 12.03.2018, but the same has not been attended so far. It is further the case of the petitioner that despite the fact that a representation has been made by the petitioner, to the utter surprise, another communication came to be received by the petitioner indicating that now a sum of Rs.5,94,534/- is to be recovered from the petitioner with effect from 01.01.1997 to 31.03.2018. By giving details inter se between the petitioner and the respondent authority, ultimately, the petitioner has approached this Court by way of the present petition for challenging the said action. Since there was a specific stand taken by the petitioner on prior recovery being sought, no opportunity was given, no procedure was followed, no information was provided, and after a period of 21 years, step is contemplated. The Court issued notice on 02.05.2018 and considering the age of the petitioner being 82 years, with the concurrence and request of both the learned advocates for the respective parties, the matter is paid urgent attention and today the same is taken by for final disposal.
(3.) Learned advocate Mr. P.C. Chaudhari appearing on behalf of the petitioner has vehemently contended that the impugned action is initiated after almost a period of 21 years and on that count alone, the same may not be allowed to be precipitated any further. It has been submitted by learned advocate Mr. Chaudhari that the petitioner has been superannuated long back in the month of November, 1996 and for the first time, without granting any opportunity, without prior intimation, and without hearing the petitioner, straightway after a period of 21 years, in November, 2017, the first communication was sent on 01.11.2017, reflecting on page 33 and thereafter without considering the stand of the petitioner, the respondent authority went on insisting upon the recovery and so much so, that unilaterally the recovery is already initiated and in the month of December, 2018, even the total pension was stopped. This autocratic exercise of power by the respondent authority is in flagrant violation of the principles of natural justice and on this count alone, the same be quashed. It has further been submitted by learned advocate Mr. Chaudhari that there was neither any mistake committed by the petitioner nor any misrepresentation was made by the petitioner, and the pension is fixed altogether by different department to which the petitioner was not a party in the said fixation and therefore, for no fault on the part of the petitioner, at this age, the petitioner is being harassed by the authority after a period of 21 years and, therefore, the action on the part of the respondent authority is absolutely unjust and arbitrary, tilted with mala fides, hence, the same be quashed and set aside. 3.1. It has further been submitted by learned advocate Mr. Chaudhari that upon gradual promotion, pay revision was fixed and the petitioner was placed in a revised scale in the year 1992 and at page 29 of the petition compilation, even this has been fixed by the respondent authority itself and it is not the case that this has been prepared by the petitioner. Thus, page nos. 29, 30 and 31 are the figures which are fixed by the respondent authority itself and, therefore, after an unreasonable period of 21 years, even if such mistake might have been committed, the same cannot allow the petitioner to be placed in precarious position and, therefore, no recovery is permissible since throughout the pensionary benefits were made available pursuant to the fixation which has been made by the respondent authority itself. Learned advocate Mr. Chaudhari has further submitted that even while initiating the process, no reasons are assigned independently, and, therefore, without assigning any cogent reason also, no such action can be initiated, In any case, as per the say of learned advocate for the petitioner, the petitioner has reached the age of 82 years, is not keeping good health, may not be allowed to be harassed by the respondent authority after 21 years for which there is no fault on the part of the petitioner. Learned advocate Mr. Chaudhari with a view to strengthen his submissions, has relied upon two decisions, firstly in the case of State of Punjab & Ors., v. Rafiq Masih (White Washer) etc., reported in 2015 (1) LLJ 455 (SC) (para 12) and in the case of Dhirubhai Somabhai Patel v. State of Gujarat & Ors., passed by the coordinate bench of this Court dated 21.04.2015 in a group of petitions headed by Special Civil Application No. 10534 of 2008 and, therefore, by referring to this, learned advocate Mr. Chaudhari has submitted that there is no justifiable reason for the authority now to seek recovery. It has been clarified that the undertaking which has been submitted for the first time as required was under the routine undertaking being submitted by every pensioner and, therefore, by utilizing this undertaking, the mistake continued over a period of 21 years cannot be rectified. Resultantly, the said form filled-in by the petitioner cannot be construed as an undertaking in strict sense. By submitting this, learned advocate Mr. Chaudhari has requested the Court that the petitioner be placed in a regular pension scale which was made available to him by the respondent authority prior to the impugned communications first in point of time i.e. 01.11.2017 and whatever amount which has been deducted under the guise of such action be refunded to the petitioner with appropriate rate of interest and it has further been submitted that now since the petitioner has reached the age of 82 years, he may not be compelled to drag himself in this age in the Court of law for unreasonable action of the respondent, and some appropriate costs be awarded to the petitioner. Lastly, learned advocate Mr. Chaudhari has submitted that the relief prayed for be granted in the interest of justice. No other submissions have been made. ;